U.S. v. LAGROU DISTRIBUTION SYSTEM

The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Defendants Jack Stewart ("Stewart"), Michael Faucher ("Faucher"), and
David Smith ("Smith") are charged with five counts related to charges of
conspiracy and statutory violations pertaining to alleged unsanitary
operations at a meat and poultry storage warehouse. Count One charges
Stewart, Faucher, and Smith with conspiracy to violate the Meat and
Poultry Acts, 21 U.S.C. § 458(a)(3), 461(a), 610(d) and 676(a), as
well as the Food, Drug and Cosmetic" Act, 21 U.S.C. § 331 (b),
333(a)(2), and 343(a)(4). Count Two charges Stewart, Faucher, Smith, and
LaGrou Distribution System, Inc. ("LaGrou") with felony violation of the
Poultry Act. Count Three charges Stewart, Faucher, Smith, and LaGrou with
felony violation of the Meat Act. Count Four charges Stewart, Faucher,
Smith, and LaGrou with felony violation of the Food, Drug and Cosmetic
Act. Count Five charges Smith with a misdemeanor violation of the Meat
Act. Presently before the Court are
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Stewart's Motion to Dismiss the Indictment and Motion to Suppress
Evidence, and Faucher's Motion to Dismiss the Indictment.

DISCUSSION

A. Stewart's Motion to Dismiss the Indictment

A proper indictment serves three functions. It states in plain and
concise language the essential facts and all the elements of the charged
offense, informs defendants of the nature of the charge, and enables
defendants to avoid repeated prosecution for the same offense. United
States v. Gironda, 758 F.2d 1201, 1209 (7th Cir. 1985). In
evaluating the sufficiency of an indictment, common sense and reason
prevail over technicalities. See United States v. Climatemp,
Inc., 482 F. Supp. 376 (N.D. Ill. 1979). The indictment is not
tested on the strengths or weaknesses of the government's case,' but
rather is examined solely for its sufficiency in charging the offense.
United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988).

Here, Stewart argues that the indictment should be dismissed because
the facts show "entrapment by estoppel." In support of this claim,
Stewart states that from 1992 to 2002 federal inspectors gave the
warehouse acceptable ratings, even though such inspectors were
purportedly aware of the rodent problem. In essence, Stewart argues that
such purportedly favorable reports amount to "affirmative misleading
conduct" that Stewart reasonably relied upon in determining that the
rodent control practices at the
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warehouse did not violate federal law. Relying on United States
v. Levin, 973 F.2d 463 (6th Cir. 1992), Stewart claims that he is
entitled to the doctrine of "entrapment by estoppel" as a means to escape
the indictment.

The government responds by arguing that the doctrine of "entrapment by
estoppel" is an extremely rare affirmative defense that applies only
where a government official affirmatively assures a defendant that
certain conduct is legal and the defendant reasonably relies upon this
assurance. See United States v. Rector, 111 F.3d 503 (7th Cir.
1997). Here, the government argues, Stewart provides no support that the
federal inspectors were actually aware of the severity of the
rodent-control problems at the warehouse, much less that they
affirmatively approved of Defendants' practices. The government notes
that the indictment charges Defendants with concealing evidence of the
alleged infestation problems. Moreover, the government claims that even
if Stewart had some evidence on this issue, a pretrial motion to dismiss
is not the proper vehicle for addressing the sufficiency of the evidence.

The government has the better argument here. In his motion, Stewart
fails to provide any support for his allegations that federal inspectors
affirmatively approved of the same type of rodent-infestation conditions
for which Stewart is now being prosecuted. Stewart asks for a hearing on
this motion "where the
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factual issues can be properly developed." However, Rule 12(b)
does not allow this Court to provide such a preliminary hearing to
resolve disputed factual issues that are at the heart of this case.
See United States v. Pergler, 1998 WL 887113 (N.D. Ill. 1998);
United States v. King, 581 F.2d 800 (10th Cir. 1978). Instead, a
trial is the proper vehicle for developing factual issues pertaining to
the affirmative defense of entrapment estoppel. Stewart will undoubtedly
be afforded that opportunity should this case reach trial.

B. Faucher's Motion to Dismiss the Indictment

Faucher argues that the indictment should be dismissed because it fails
to (1) "identify the objective source" of Faucher's alleged duty to
maintain sanitation standards, (2) "identify, with sufficient
particularity, the thing[s] the defendants allegedly intended" to take;
and (3) alleged materiality. Faucher also argues that Counts Two and
Three must be dismissed because they are duplicitous and that the word
"improperly" should be stricken from these Counts.

Faucher's initial attack on the indictment is that it claims that he is
responsible for "maintaining sanitation standards" at the warehouse, but
fails to describe the "objective source of the duty." The crux of
Faucher's argument here is that the indictment lacks sufficient
particularity regarding the purported source of Faucher's duty. As a
result, Faucher claims that he is "unable to
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ascertain the nature and cause of the accusations, or prepare a
defense."

The government responds by arguing that an indictment need not identify
with particularity the factual basis of every allegation. In addition,
the government states that there is ample legal and factual basis upon
which Faucher can locate his duty to maintain sanitation standards. The
government cites United States v. Park, 421 U.S. 658, 666 (1975)
for the proposition that a defendant who is in a position of authority
and responsibility can be held criminally liable for violation of FDA
sanitation standards, even though such a defendant did not personally
participate in the criminal conduct. The government also attaches as an
exhibit an application for USDA inspection where Faucher apparently
certified under penalty of perjury to conform to certain sanitary laws
and regulations.

The government's argument prevails here. In Park, the United
States Supreme Court held that persons in Faucher's position had an
affirmative duty to abide by food sanitation laws. There can be no higher
"objective source" for this duty than the United States Supreme Court.
The indictment is otherwise sufficient to inform Faucher of the nature of
the charges and allow him to present a defense. (The Court does not need
to consider the exhibit that the government attaches to reach its
decision here.)
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Faucher next argues that the indictment should be dismissed because it
fails to identify with particularity the things that he allegedly
intended to take from the alleged victims. The government responds by
stating that it is "quite clear from a plain reading of the indictment"
that Defendants intended to take money from their victims by, ...

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